that execution should be limited to the ground for purchase-money of which note was given. Subsequent to entry of judgment the ground had been sold to one Brady, subject thereto. The depositions showed that Brady held certain claims against plaintiff. Brady, for terre tenant, now moved to open judgment and be allowed to set off claims in defence. Wolbert, contra. THE COURT (ALLISON, P. J.) discharged the rule. D. C. Sept. 22. MIDDLETON V. TRAINER. Practice-Affidavit of defence-Alias writ. A writ of summons issued and copy of book account was filed. The writ was returned "nihil,” and an alias issued. No copy was filed under the second writ. The record showed an affidavit of defence filed in the second suit, and judgment entered for want of an affidavit of defence in the first suit, both upon the same day. Clayton, having obtained a rule to strike off the judgment, cited Duncan v. Bell, 4 Casey 516, and stated that the plaintiff's counsel admitted that the affidavit was filed at an hour before that in which judgment had been entered. THE COURT directed a special order to be prepared setting forth the admission of the plaintiff, and thereupon made the rule absolute. Rule to open judgment. The defendant, being served with a summons, appeared propria persona on the return day, and was informed that his appearance should be in writing He employed a clerk in the prothonotary's office to write the præcipe, which he signed. The clerk charged fifty cents, which the defendant did not pay, because he had no money with him, and left the office, promising to return, which, however, he failed to do. The præcipe not having been filed, judgment by default was entered. The affidavit of defendant showed a partial defence, but admitted a balance due to plaintiff. Pitton, for the rule. THE COURT reduced the judgment to the sum which appeared to be due (plaintiff electing to take the residue rather than have the judgment opened), and discharged the rule. D. C. Sept. 22. ROTH V. WEISBERGER. Judgment confessed— Usury. This was a rule to open judgment entered on a judgment note. The affidavit of defendant (which the plaintiff accepted in lieu of a deposition) set forth that the money had been borrowed by a third party, whose note defendant had signed as surety. The amount loaned was $500, but the note was for $625. Defendant had received, as he alleged, no part of the $500. There was no allegation of fraud. Dittman, in support of the rule. G. Remak, contra. THE COURT held that usury would always be a defence in such a case, and discharged the rule on entry of a remittitur for all over the amount actually loaned. D. C. Sept. 22. STONE V. BONSALL. Promissory note-Demand. Assumpsit on promissory note. The defendant was indorser. On the note, below the maker's signature, was written "notice to 623 Walnut Street." The notary's return of protest showed that demand was made at 623 Walnut Street. The affidavit alleged that demand was not made at the maker's residence or place of business, though he had such within the city. B. F. Fisher obtained rule for judgment for want of sufficient affidavit, and now moved accordingly. THE COURT made the rule absolute. Affidavit of defence-Action on check given for goods sold-Laches. The defendant, in February, 1874, bought some picture frames from the plaintiff. When the frames arrived the stem was cracked, owing to the inferior nature of the composition. The defendant gilded the frames, and about May 1st sent them west. On their arrival they were in bad condition from original defects, and unsalable. On the 29th of May, the defendant gave plaintiff a check for the amount of his bill and then stopped payment of the check. The plaintiff brought suit and obtained judgment for want of affidavit. R. E. Randall, having obtained rule nisi to open judgment, now moved accordingly. Huey, contra. Rule discharged. Sept. 22. that the maker and acceptor were insurance agents, and that the draft was given in payment of premiums placed by them for the Franklin Insurance Company of Louisiana, of which company one Steever, an indorsee, was the general agent and manager in the mised to remit the draft to the home office of the City of Philadelphia. Steever was directed and procompany. Before the draft had left Steever's hands, the maker learned that the company had become insolvent, and was in the hands of a receiver, and, deeming himself liable for a return of premiums to policy holders, he instructed the acceptor not to pay the draft, and demanded its return from Steever, who promised to return it. The indorsement to Steever had been made to enable him to have the note dis This was assumpsit on a promissory note. Affidavit set up that plaintiff and defendant had been partners, and defendant claimed as set-off, first, that he had done plaintiff's share of the partnership work for him, with assent of other partners, under an agreement that plaintiff should pay a reasonable compensation, which compensation the defendant fixed at 800, and which was not paid; second, that the plaintiff had, since the giving of the note, sold the defend ant's interest in the firm, the value of which was some $600, and had received the money but not accounted for it. Bennett, having obtained rule for judgment for want of sufficient affidavit, cited in supportDundass v. Gallagher, 4 Barr, 205. Colton, contra, was not called, but PLEASANT VALLEY WINE Co. v. WILSON. Partnership-Registration. This was assumpsit on a book account. The defendant in his affidavit of defence stated that he was in partnership with one Coulter, and alleged his nonjoinder as a defence. Having obtained a rule nisi for judgment for want of sufficient affidavit, W. W. Montgomery, for plaintiff, now moved accordingly. THE COURT made the rule absolute, on the ground that, by the Act of April 14, 1851, ? 13 (Pur. Dig., 1119, 1), in order to take advantage of non-joinder of a partner, the partnership must be registered. (See, contra, McCouch v. Price, 3 Phila. 148.-ED.) The The counted and deduct his commissions. While the note was still in Steever's possession, the defendant, having learned the above facts, notified Steever to erase defendant's name from the draft and not put it again into circulation. Steever promised to do so, but, instead of so doing, circulated the note. Having obtained a rule for judgment for want of sufficient affidavit, Junkin, for plaintiff, now moved accordingly. THE COURT refused judgment, on the ground that, the draft having been put into circulation in fraud of defendant, the burden of showing that he gave value was on the plaintiff. D. C. GARRISON v. LENTZ. Sept. 23. Scire facias sur mortgage-Set-off-Judgment for want of affidavit refused where a balance appeared against plaintiff, though there was no specific averment of agreement to credit on mortgage. Scire facias sur mortgage. Defendant filed an affidavit of defence, averring that plaintiff was inand.claiming to set off such amount. There was no debted to him for moneys collected on his account, specific allegation that the collections were to be credited upon the mortgage, and it appeared that there were other transactions between the parties. Having obtained a rule nisi for judgment for want of sufficient affidavit,! Fletcher, for plaintiff, now moved accordingly. Rule discharged. This was an action on a judgment obtained by plaintiff against defendant, in the Supreme Court of the State of New Jersey, May 6, 1872. A certified copy of the record was duly filed in this Court. record showed an appearance by defendant. affidavit of defence set up a defence on the merits. charged that the judgment was a fraud upon defend- D. C. ant, but did not show a want of jurisdiction in the New Jersey Court, nor did it expressly deny service of process upon defendant in the suit in which judg ment was rendered. Purves, for plaintiff, now moved for judgment for want of sufficient affidavit. Sprogel, contra. Rule absolute. SUPLEE et el. v. REZNOR. Sept. 23. Promissory note-Collateral agreement. against maker. The affidavit of defence stated that This was assumpsit on a promissory note by holder the note was given by the defendant as a donation to a church, and upon the express condition that a lot whereon the church was erected should be couveyed to said church, that said condition had not been complied with, and that defendant believed the note to have been passed to plaintiffs to avoid the above defence. There was no allegation that the Payee was a party to the condition for the convey. ance to the church. Having obtained a rule nisi for judgment for want of sufficient affidavit, Nichols, for plaintiff, now moved accordingly. Sept. 23. be made a party. By leave of the court the rule was withdrawn. Practice-Judgment by default-Rule to declare— No copy furnished counsel. This was a rule to set aside judgment of nonsuit for want of a Narr. The record showed a Narr. filed before judgment. An affidavit of counsel was filed, setting forth that in accordance with a rule to declare plaintiff had filed a Narr., but neglected to furnish a copy to defendant, hence the judgment. THE COURT held, that, no affidavit of the plaintiff's failure to furnish a copy of the Narr. being filed, there was nothing on the record to support the judgment, and made the rule absolute. Surety-Feme covert-Statute of frauds. On the trial of the cause the plaintiff proved that he had made a lease of premises to a firm of which defendant's husband was a member; that defendant signed the lease as surety. There was no express consideration for her so doing. That after her husband's death demand was made upon her for the rent subsequently accruing, and that she admitted her liability, and promised to pay. The defendant demurred to the evidence. Birkmyr v. Darnell, and notes, 1 Smith's Lead. THE COURT entered judgment for defendant. This was a rule to set aside fi. fa. Plaintiff was assignee of a bond and second mortgage given by defendant. A sheriff's sale of the property, under a prior judgment, had taken place. at which the applicant under the present rule was the purchaser. Afterwards plaintiff entered judgment by virtue of a warrant of attorney in the bond, and a fi. fa. issued against the property. H. Wharton, for the rule, argued that the sheriff's sale divested the lien of the mortgage, and the execution should be set aside. THE COURT were of opinion, that, as the purchaser was not a party to the record, she had no standing A petition should be presented praying to | in court. YOCUM V. SPECHT. Sept. 22. D. C. Sheriff's sale-Notice to plaintiff-Fraud on part of defendant. This was a rule to set aside sheriff's sale of personal property. The deposition alleged a fraudulent arrangement by which the goods were bought in for the benefit of the defendant, at an inadequate price. The plaintiff received no notice of the sale, and was informed by the sheriff's deputy that he did not know when it would take place. After the sale defendant gave to the purchaser his note for $200, for the money expended in the purchase, and for "his services." and it was further alleged that defendant had remained in possession of the goods. Staake, for the rule. R. P. White, contra. Sept. 25. Rule absolute. C. A. V. D. C. The defendant distrained upon goods in plaintiff's house for arrears of rent. The plaintiff sued out a replevin for the goods. The defendant avowed for arrears of rent. The plaintiff pleaded that the goods were the property of his wife. Defendant demurred. B. Johnson, for demurrer. cited Blanche v. Bradford, 2 Wright, 344. H. R. Kneass, contra. THE COURT sustained the demurrer and entered judgment for the defendant. Johnson contended that the judgment should be de retorno habendo, and a writ of inquiry awarded, and cited Execution-Release of errors. Rule to stay hab. fa. and fi. fa. Sept. 26. D. C. A judgment against defendant had been entered in June upon the bond and warrant accompanying a lease. A rule was obtained to open the judgment and stay the execution, which was discharged on Sept. 21. Immediately a writ of error was sued out. The lease contained a release of errors, and a waiver of all process of review by certiorari, writ of error, or otherwise. L. Hirst, for the rule, cited Bryan v. Comly, 2 Miles, 271. F. C. Brewster, contra, cited McDonald v. Gifford, 1 Brewster, 278. Rule discharged. PILE V. GRAMBO. Practice-Sheriff— Exemption. Sept. 21. Rule to set aside appraisement An execution was issued, and certain property seized as the property of defendant. The defendant was President of "The Security Company, and gave notice that the property levied on was the property of the company, making affidavit that he did not individually own it. A rule for an interpleader was taken. Subsequently Grambo withdrew the claim of the Security Company, and claimed the benefit of the $300 exemption law with regard to said property. Under this claim an appraisement was made, and the plaintiff took this rule, on the ground that the defendant by his disclaimer at the time of levy, had lost his right to the benefit of the exemption act. No irregularity in the sheriff's action was alleged. Pile, for rule, cited Strouse's Ex. v. Becker, 2 Wr. 190. Gilleland et al. v. Rhoads, 10 Casey, 187. Diehl, contra. C. A. V. Sept. 28th, THE COURT being of opinion that the sheriff must take the responsibility of allowing or refusing the exemption, Rule discharged. D. C LEACH & BONSALL. Sept. 21. Costs-Security on writ of error. This was a rule to set aside levari facias. The plaintiff obtained a verdict in this court in an action on a mortgage, the terretenant, a corporation, took a writ of error and entered security in the Supreme Court for the costs only. The plaintiff issued a levari facias. Downing, for rule, cited— Hosie v. Gray, 23 P. F. Sm. 502. S. W Pettit, contra, cited— Rheem v. Naugatuck Wheel Co., 9 Casey, 358. C. A. V. D. C. C. A. V. Sept. 22. M'LEAN et al., ASSIGNEES OF FRANKLIN SAVINGS FUND SOCIETY, BANKRUPTS, ASSIGNEE OF CADWALLADER, v. MAN et ux. Mortgage Loan in violation of charter-Estoppel. This was a rule for judgment for want of sufficient affidavit scire facias sur mortgage. The defence set up that the mortgage was given as collateral security for a note given by defendant to Cadwallader for a loan made by the Society, that plaintiffs should have sold the mortgage at public sale, and that the loan violated the provisions of the Society's charter, declaring that said Society shall not invest its capital stock, deposits, or other moneys in the purchase, loan upon, or discount of any bill of exchange, promissory note. or other negotiable paper, that no loan upon any security should in any case exceed two-thirds of the market value thereof at the date of loan, nor should any loan, under the name of commissions or other wise, be at a greater rate than 6 per cent. per annum." Sharpless for rule. Michener, contra, cited— Diller v. Brubaker, 2 P. F. Sm. 498. Head et al. v. Providence Ins. Co., 2 Cranch, 150. N. Y. Ins. Co. v. Ely, 5 Conn. 569. Sept. 28. Rule absolute. whiskey had been bought by defendant, and that this was a fraudulent claim. Upon this information defendant agreed with Hoak, the apparent, equitable owner of the judgment, that the judgment should be opened on payment of $1300 to Hoak. A rule to open judgment and award a venire facias de novo having been obtained, Sellers, in support of the rule, now cited Com. v. Mayloy et al., 7 P. F. Sm. 291. Mather's Ex. v. Patterson, 9 Casey, 485. Rhoades v. Com., 3 Harris, 276. Kaulbach v. Fisher, 1 Rawle, 323. Cochran v. Eldridge, 13 Wr. 371. Sept. 28. Rule discharged. C. A. V. Sept. 24. C. A. V. Judgment confessed— Evidence necessary to open— Rule to open judgment, entered on warrant June, Sept. 23-472. The depositions alleged that other judgments had been entered for the same debt. Practice-Opening judgment and granting new trial after term. The plaintiff brought suit for twenty-five barrels of whiskey. Two days before the trial the suit was marked to use of one Baliet, without notice to defendant. The verdict was for plaintiff, and a new trial was refused. Defendant then took a writ of error. In 1874, the Supreme Court affirmed the judgment. Attachments were issued against both the equitable and legal plaintiffs shortly after the judgment in 1871. The judgment subject to the attachments was once or twice assigned until it came into the hands of one Hoak. After the affirmance of judgment, defendant was informed by Baliet that Miller, the plaintiff, had acknowledged that no such Manderson, for rule. W. W. Montgomery, contra, relied on the delay in the application, and a want of preponderance of evidence in favor of defendant on the merits, citingMay v. Sharp, 1 Troubat and Haly's Practice, |